Prop. 32 not unions' only worry

U.S. SUPREME COURT

Updated 10:42 am, Tuesday, October 23, 2012

Photo: Rich Pedroncelli, Associated Press

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In this May 13, 2011 file photo, teachers,. students and supporters demonstrated against proposed budget cuts to education, at the Capitol in Sacramento, Calif., Friday, May 13, 2011. If approved by voters in November, Proposition 32 would prohibit corporations and unions, like the California Teachers Association, from collecting money for state political activities from employees or members through paycheck deductions. It also prohibits unions and corporations from making donations to state candidates.

In this May 13, 2011 file photo, teachers,. students and supporters demonstrated against proposed budget cuts to education, at the Capitol in Sacramento, Calif., Friday, May 13, 2011. If approved by voters in

Students, dignitaries and supporters cheer on Gov. Jerry Brown who holds up a campaign sign and encourages students to vote yes for Proposition 30 at Sacramento City College, Thursday, October 18, 2012 in Sacremento, Calif. Gov. Jerry Brown sought to persuade college students on Thursday to support his November tax measure, telling them a quarter-cent increase in the state sales tax and higher income taxes on the wealthy are a small price to pay for a more stable state budget and secure higher education funding.

Students, dignitaries and supporters cheer on Gov. Jerry Brown who holds up a campaign sign and encourages students to vote yes for Proposition 30 at Sacramento City College, Thursday, October 18, 2012 in

Graham Nash performs onstage at a concert to defeat Prop. 32 at the Nokia Theatre on Wednesday, Oct. 3, 2012, in Los Angeles.

Graham Nash performs onstage at a concert to defeat Prop. 32 at the Nokia Theatre on Wednesday, Oct. 3, 2012, in Los Angeles.

Photo: Todd Williamson, Associated Press

Prop. 32 not unions' only worry

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Proposition 32, which would cripple labor unions politically in California by prohibiting use of payroll-deducted dues money for campaigns and lobbying, is trailing in the polls. But even if it loses, the U.S. Supreme Court has signaled that it intends to take a step in the same direction.

Court action, which could come in the next year, wouldn't go as far as Prop. 32's virtual elimination of political funding by unions. But it would still be a significant blow to organized labor.

The Nov. 6 ballot measure would forbid any political use of a union's bread-and-butter resource: the money deducted from employee paychecks for annual dues assessments. Union members aren't the sole source of those funds. In workplaces where unions have negotiated "agency shop" agreements to represent all employees, nonmembers must also pay dues to cover the costs of representing them.

The Supreme Court case focuses on the rights of nonunion members.

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Ruling in a California case in June, the court said a public employee union violates the free-speech rights of nonmembers it represents at the bargaining table when it uses some of their fees for political causes without their advance permission.

That ruling didn't involve regular union dues, but instead a special midyear assessment that the Service Employees International Union imposed in 2005 for a campaign against antiunion ballot measures. The SEIU collected the assessment without advance notice to its workforce, including 28,000 nonmembers.

Objecting in advance

The Supreme Court had ruled in 1986 that unions could use nonmembers' dues for political purposes as long as it allowed them to seek refunds later. In the latest ruling, however, the court said the union shouldn't have collected the special assessment as a payroll deduction without allowing nonmembers to object in advance - a small but significant difference.

"The compulsory fees (from nonmembers) constitute a form of compelled speech and association that impose a significant impingement on First Amendment rights," said Justice Samuel Alito, writing for a five-member conservative majority.

He said the 1986 ruling allowing unions to collect the money first, and let nonmembers "opt out" by seeking refunds later, was a "historical accident" that failed to give adequate consideration to free speech.

Because nonunion members have a right to spend money only for causes they support, Alito said, the SEIU should have let them "opt in," by consenting in advance, before spending their special assessment funds on a political campaign. And he hinted strongly that the court would apply the same reasoning to any future challenges by nonunion members to any political use of their annual dues.

Closing funds source

The effect would be to limit a current source of political funds used by unions. Nonmembers have already voted against union representation, so few, if any, would be likely to agree to make payments to unions' political treasuries, if asked in advance. Some, but not all, now apply for refunds of the portion of annual dues that was used for political purposes.

"The court was inviting a case that explicitly addresses the annual assessment," said Deborah La Fetra, a Pacific Legal Foundation attorney in Sacramento who filed arguments against the SEIU in the case. "The free-speech concerns are the same."

Alito's opinion points to a future ruling that "will impair substantially the ability of unions to participate in the political process," said William Gould, a Stanford labor law professor and former chairman of the National Labor Relations Board under President Bill Clinton.

The June ruling applied to public-employee unions, but it set a precedent, he said, that will apply to private-sector employees in a future case.

Although Alito said the agency shop itself was a form of "compelled speech," he gave no indication that the court would restrict unions' use of its members' dues, the goal of Prop. 32.

When unions engage in political activity, like lobbying lawmakers or contributing to their campaigns, payroll-deducted dues money is virtually their sole source of funds. The ballot measure would ban all such spending and instead allow dues money to be used only to represent a union's workforce in contract negotiations, grievances and similar proceedings.

If a union, public or private, wanted to continue to take part in politics, it would have to seek voluntary contributions from its members.

If Prop. 32 passes, "unions are out of politics altogether," said Gould, who chaired the NLRB from 1994 to 1998.

Illinois case

He said the court might use a pending case from Illinois to expand its recent ruling on nonmembers' rights. That case currently involves a narrower issue of a union's right to collect dues from home health care workers, but the court has asked the Obama administration to weigh in, a possible sign that the justices are considering a broader question, Gould said.

Although the anticipated ruling on union dues would directly affect only nonmembers, Gould said, it would also give members an incentive to quit a union, reducing their dues obligations while maintaining representation at the bargaining table.

The likely result, he said, is "a decline in union membership and correspondingly a (further) decline in political influence."

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